The Scandal-Singed DA’s Who Want to Be Judges

ByBETH SCHWARTZAPFEL of The Marshall Project |April 19, 2016

(This article was republished with permission from The Marshall Project, a national nonprofit news organization dedicated to covering the criminal justice system. Voice of OC made minor changes to the original version to make it more relevant to our local audience.)

Orange County’s long-running jailhouse snitch scandal has moved beyond the courtroom and into this year’s election.

Two longtime prosecutors from District Attorney Tony Rackauckas’ office — Michael Murray and Larry Yellin — are running for Superior Court judgeships, aiming to take the bench alongside judges who have called them out for misconduct.

Neither prosecutor has been formally sanctioned in the scandal, in which DA prosecutors and Orange County Sheriff’s deputies violated the constitutional rights of criminal defendants by withholding evidence gleaned by jailhouse informants from their attorneys.

But both are supervisory-level district attorneys in an office that a judge recently ruled “habitually ignored the law over an extended period of time.”

Both, by their own admission, have withheld evidence. But if elected, Murray and Yellin won’t be the first prosecutors to join the bench after withholding evidence or being accused of misconduct.

Legal scholars and critics have long noted how rarely prosecutors are publicly accountable for misbehavior. A recent investigation by the New England Center for Investigative Reporting, for example, identified 120 Massachusetts criminal convictions that were reversed in the last 30 years because of prosecutorial misconduct; at least seven of these prosecutors went on to higher posts, including judgeships, the reporters found.

“The idea that an individual responsible for such serious misconduct could effectively stroll into the office of judge is deeply disturbing,” says Laura Fernandez, a Yale research scholar who studies prosecutorial misconduct.

No one has yet faced charges related to the scandal, but one deputy district attorney resigned and four sheriff’s deputies refused to testify in a related hearing, citing their Fifth Amendment right against self-incrimination.

“More troubling still, this appears to be the tip of the iceberg,” John Van de Kamp, a former state attorney general, and Erwin Chemerinsky, dean of the law school at the UC Irvine (and Voice of OC board member), wrote last year in a letter to the Justice Department, requesting a federal inquiry. “Compelling evidence of pervasive police and prosecutorial misconduct in Orange County…has caused us grave concern.”

District Attorney Tony Rackauckas has agreed to the probe; Justice Department spokeswoman Dena Iverson told the Marshall Project the Department is reviewing the letter and declined to comment further.

The judicial election is June 7.

At the heart of the scandal is a database the Orange County Sheriff’s office uses to track the placement of informers in the jail. Use of jailhouse informers is constitutional, as long as the informer happens to hear the defendant talk, unprompted. But the Supreme Court said informers can’t elicit information from someone who already has a lawyer — that would too closely resemble an interrogation.

What’s more, any deals brokered with informants, and any information that might undermine the informants’ credibility — say, that they were informants in other cases, or that they have lied on the stand in the past — must be turned over to the defense.

The database first came to light when public defender Scott Sanders combed through thousands of pages of records and pieced it together. Sanders was representing confessed mass murderer Scott Dekraai, whom DAs targeted with the scheme. Documents and subsequent hearings revealed that it wasn’t just Dekraai—the DA’s office had been violating these constitutional prohibitions for years.

In a searing ruling issued last March, Orange County Superior Court judge Thomas Goethals removed the entire county DA’s office — all 250 attorneys — from Dekraai’s case, the highest-profile murder case the county has ever seen, ruling that the DA had proved himself incapable of achieving “compliance with his constitutional…obligations in this case.

“The DA’s office then retaliated by seeking to have Goethals removed from almost every murder case it tried in the months that followed. In that instance, one of Goethals’s colleagues, Superior Court Judge Richard King, ruled that the DA’s actions “have substantially disrupted the orderly administration of criminal justice in Orange County, the sixth largest county in the nation.”

This legal battle is ongoing, as the DA’s office fights to maintain its ability to disqualify Goethals from cases at will.

Now, armed with new revelations from the database and its fallout, defense lawyers have begun to unravel other cases in which jailhouse informers may have been used illegally against their clients.

A handful of these cases raise questions about Murray and Yellin. In one case, Murray didn’t turn over a jailhouse recording of an informer named Oscar Moriel, who had served as a snitch in several other cases. The recording could have helped the defense team of Alberto Martinez, accused of a gang-related killing.

In the tape, Martinez’s co-defendant Armando Macias downplays Martinez’s role in the gang, undermining the prosecution’s theory at trial that Martinez was a high-ranking member of the gang.

In a hearing related to the snitch scandal, Murray admitted on the stand that he violated the law by not turning over these recordings to Martinez’s or Macias’s legal teams. Both men were later sentenced to death.

And in 2007, in a case unrelated to the scandal over informers, Murray was cited for misconduct by a California appeals court, which identified multiple instances when Murray misstated the law and used improper tactics at the murder trial of Thai Ba Tran.

The court upheld Tran’s conviction for two 1996 murders, but wrote, “our conclusion Tran was not prejudiced by Michael Murray’s numerous acts of misconduct does not mean we approve of or condone his tactics and behavior. The district attorney should take little solace in the fact we have affirmed Tran’s convictions…We are troubled by the frequency in which we see prosecutorial misconduct.”

Murray did not respond to multiple requests for comment, but on his campaign website, he says “I have a reputation as a determined, knowledgeable and ethical prosecutor.”

Yellin, running for a separate Superior Court seat, admitted in 2014 that he did not turn over key information from an informer in a murder case against Nuzzio Begaren. In that case, a jailhouse snitch named Raymond Cuevas not only elicited information from Begaren’s accomplice, Rudy Duran, but Cuevas also threatened that the Mexican Mafia would go after Duran if he didn’t inform against Begaren.

Yellin admitted he never turned over these recordings to Begaren’s lawyers, but he was unrepentant, telling a reporter it was “redundant” to other evidence. “It would have given [Begaren’s lawyers] nowhere to go,” he said. In the same article, Yellin’s own boss conceded, “it should have been turned over.”

“You’re talking about a situation where the jailhouse informant threatened physical violence, even death, to elicit statements, conduct that is flatly unconstitutional,” says Fernandez, the Yale research scholar.

Yellin also did not respond to emails and Facebook messages requesting comment. On his campaign website he describes himself as “a tough but fair prosecutor.”

If Murray and Yellin are elected, they will be in a position to rule on cases related to withheld database evidence.

This article was reprinted with permission from The Marshall Project, a national nonprofit news organization dedicated to covering the criminal justice system.

RELATED STORIES

In his ruling, Goethals wrote the “serious misconduct” of former Orange County District Attorney prosecutor Michael Murray and his team was so egregious Wilkins must instead be tried for second degree murder.

Superior Court Judge Thomas M. Goethals said two former DA prosecutors, who are now judges, engaged in “serious misconduct” in a murder case. But he stopped short of barring the entire office as he did in the jailhouse snitch case.

JOIN THE DISCUSSION

DA Rackauckas’ OC jailhouse informant scandal has been widely publicized throughout the U.S. It is also public knowledge that not one OC Sheriff official/employee and/or OC District Attorney prosecutor/investigator have been charged with a crime that may or may not involve “obstructions of justice”, “conspiracy”, “perjury” and/or RICO statutes. The upholding of the integrity in U.S. courts should be held at the highest level, with full accountability, without exceptions.
If the USDOJ and FBI continue to ignore the ongoing potential crimes continuing under their noses in the affluent and well-educated Orange County, California, then federal government officials and agencies need to ACCEPT full monetary responsibility for damages created based on their failures to act in the interests of justice and public safety, on behalf of the People.

OCservant_Leader

Well said.

WHO will protect the citizens from this entrenched organized crime family running OC?

OCservant_Leader

These two prosecutors running for judge are literally the poster child of OC corruption. Win at all costs. Get a promotion…move to a bigger house behind a bigger gate and join the Elites.

Paul Lucas

First question; how would they be able to rule over cases that involve with held information from those databases? Wont defense attorneys be bale to seize upon that and disqualify them from cases? Second question; WTF and who is allowing these criminals o seek Judge seats?

gustavoarellano

That’s hilarious: Voice of OC removed all the many links in the original story citing OC Weekly’s coverage and replaced them with their own stories—never mind that VOC isn’t cited once by the Marshall Project. Stay funny, kids!

I’m sorry you feel slighted by my decision to link to our stories on the informants scandal. I assure you it was not done out of disrespect to you or the great work Scott and you have done on the story. Rather, I did it out of respect for the work Rex Dalton as done for us. We’ve published more than 40 stories on the scandal, nearly all of them penned by Rex. Our first story landed in February 2014, just days after the records uncovered by Scott Sanders were unsealed. In short, we were not one of the news organizations who, in your words, have “taken a nap” during the scandal. We’ve run stride-for-stride with you on the story ever since it broke. So I feel it is my prerogative to link to the previous work our organization has done whenever we publish a story on the scandal. That being said, let us all keep working like savages to hold the scoundrels of OC accountable.

All the best,

David Washburn

LFOldTimer

But that R. Scott Moxley is one heck of a talented reporter. He was light years ahead of everyone else on “America’s Greatest Sheriff” Mike Carona. Moxley doesn’t get enough credit for his investigative journalism skills. And Moxley doesn’t play favorites either. I love reading his stuff.

David Zenger

David, Gustavo has a point. The original article linked to specific Weekly stories. However, the offense is not against the Weekly, per se, it is against the integrity of the story and its author.